9911796707
TMI Blog2021 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... n not more than two years. Reading such a restriction would be contrary to the recommendations of the Independent Review Committee and the judgment of this Court in Vineet Narain.[ 1997 (12) TMI 615 - SUPREME COURT] - Curtailment of the tenure of a Director Enforcement would be detrimental to the interests of officers who are appointed to the post and have service of more than two years before they attain the age of superannuation. Therefore, we hold that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act. As held that the initial appointment of the second Respondent cannot be termed to be illegal and that he had a right to continue till 18.11.2020 by virtue of his appointment for a period of two years. For all practical purposes, he should be treated as the Director of Enforcement till that particular date he was holding an office which is not below the rank of an Additional Secretary to the Government of India. Therefore, he was eligible for extension of tenure. The material on record indicates that the extension of service of the second Respondent was pursuant to the recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2003 (for short, CVC Act ). 2. On 19.11.2018, the second Respondent who was working as Principal Special Director in the Directorate of Enforcement was appointed as Director of Enforcement for a period of two years from the date of his assumption of charge of the post or until further orders, whichever is earlier. By an office order dated 13.11.2020, the President of India approved the modification of the order dated 19.11.2018, by amending the period of appointment from two years to three years. The grievance of the Petitioner is that the extension of tenure of the second Respondent to three years is contrary to Section 25 of the CVC Act. It has been averred in the Writ Petition that Respondent No.2 attained the age of superannuation in May, 2020. The initial tenure of two years came to an end on 19.11.2020. In the meanwhile, on 13.11.2020, the tenure of the second Respondent was extended from two years to three years. As the second Respondent attained the age of superannuation in May, 2020, the second Respondent was not holding any post equivalent or above the rank of Additional Secretary to the Government of India on 13.11.2020 when his tenure was extended. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Director of Enforcement is for a minimum period of two years from the date of assumption of office and the Director cannot be transferred, except with the consent of the Committee. The extension or curtailment of service dealt with in Section 25 (f) is applicable to officers other than the Director of Enforcement. Emphasis was laid by Mr. Dave on Fundamental Rule 56, according to which there cannot be any extension of the service of Director of Enforcement. There is no exception carved out in Fundamental Rule 56 for appointment, reappointment/extension of officers other than those who are mentioned in the Rule. Mr. Dave asserted that the order impugned in the Writ Petition suffers from the vice of malice in law as it was passed for extraneous considerations. In support of the said submission, Mr. Dave relied upon a judgment of this Court in Smt S.R. Venkataraman v. Union of India and Anr (1979) 2 SCC 491. He further stated that Section 21 of the General Clauses Act has no application to Section 25 of the CVC Act by relying upon the judgments of this Court in Strawboard Manufacturing Co., Ltd. v. Gutta Mill Workers Union (1953) 4 SCR 439 , State of Madhya Pradesh v. Aj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the learned Solicitor General that the words not less than two years have to be read as not more than two years , if the argument of the Petitioner is to be accepted. He submitted that the rule of literal construction of a statute has to be followed when there is no ambiguity in the language of the provisions of the Act. Reliance was placed on Pakala Narayanaswami v. King-Emperor AIR 1939 PC 47 , Rananjaya Singh v Baijnath Singh Ors. (1955) 1 SCR 671 and Nathi Devi v Radha Devi Gupta (2005) 2 SCC 271 . 6. Any interpretation contrary to the plain words of a statute would result in rewriting the statute which is not permissible. While accepting that there is no specific provision for extension of the tenure of the Director of Enforcement in Section 25, it was contended that the Union of India has the power to extend the tenure of Director of Enforcement by resorting to Section 21 of the General Clauses Act. The learned Solicitor General referred to the judgment of this Court in State of Punjab v Harnek Singh (2002) 3 SCC 481 to submit that it is settled law that the General Clauses Act is a part of every Central Act and has to be read in such Act unless sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption. The report of the Committee was circulated by the Union of India, according to which the Director of Enforcement shall have a minimum tenure of two years. In case of pre-mature transfer of the Director of Enforcement, the Selection Committee headed by the Central Vigilance Commissioner shall make suitable recommendations to Appointments Committee of the Cabinet. The statement of objects and reasons further refers to a judgment of this Court in Vineet Narain (supra) by which a recommendation of the Independent Review Committee relating to the minimum tenure of two years for Director of Enforcement was approved. It was held in Vineet Narain that the Director of Enforcement shall have a minimum tenure of two years and that premature transfer for any extraneous reason shall be approved by the Selection Committee headed by the Central Vigilance Commissioner. Section 25 of the CVC Act pertaining to the appointments of the officers of Directorate of Enforcement reads as thereunder: - 25. Notwithstanding anything contained in the Foreign Exchange Management Act, 1999 or any other law for the time being in force,- (a) the Central Government shall appoint a Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, that extension or curtailment of tenure is provided in Section 25 (f) in respect of officers other than that of the Director of Enforcement. The procedure and other conditions of service mentioned in Section 25 are notwithstanding anything contained in the Foreign Exchange Management Act, 1999 or any other law for the time being in force. 10. At this stage, it is relevant to refer to the Fundamental Rule 56 which has been relied upon by the Petitioner to buttress the submission that there cannot be any extension of service after a person holding a civil post under the Union of India has attained the age of superannuation. Fundamental Rule 56 reads as follows:- Extracts of provisions in Fundamental Rule 56 F.R. 56(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years. Provided further that a Government servant who has attained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything contained in any rule, the Central Government may, if considered necessary in public interest so to do, give extension in service to a Cabinet Secretary in the Central Government for such period or periods as it may deem proper subject to the condition that his total term as such Cabinet Secretary does not exceed four years. Provided also that the Central Government may, if it considers necessary in public interest so to do, give extension in service to the Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation in the Central Government for such period or periods as it may deem proper on a case-to-case basis, subject to the condition the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule, does not exceed two years. Provided also that notwithstanding anything contained in the fifth proviso, the Central Government may, if considers it necessary, in public interest, so to do, give an extension in service for a further period not exceeding three months beyond the said period of two years to the Home Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of Enforcement in conformity with Fundamental Rule 56 by not fixing his tenure for two years. He was directed to be continued only till the date of his superannuation. A Writ Petition was filed contending that he has a right to continue for a period of not less than two years from the date on which he assumes office. This Court by a judgement dated 30.01.2017 held that Section 25 has overriding effect over any other law for the time being in force. In any event, a statutory rule i.e. Fundamental Rule 56(a) cannot override a legislative enactment. In view thereof, this Court directed the Union of India to issue a fresh order of appointment in compliance of Section 25 (d) of the Act permitting Shri Karnail Singh to continue in office for a period of two years from the date on which he assumes office. We, therefore, hold that the initial appointment of second Respondent for a period of two years from 19.11.2018 which extends beyond the date of his superannuation in May, 2020 is in accordance with Section 25 of the CVC Act and cannot be said to be illegal. 13. The Petitioner contended that Section 25 (d) which postulates a tenure of two years for a Director of Enforcement c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttained the age of superannuation in the interregnum i.e. before the expiry of two years. We have already held that the initial appointment of the second Respondent cannot be termed to be illegal and that he had a right to continue till 18.11.2020 by virtue of his appointment for a period of two years. For all practical purposes, he should be treated as the Director of Enforcement till that particular date he was holding an office which is not below the rank of an Additional Secretary to the Government of India. Therefore, he was eligible for extension of tenure. 16. We proceed to deal with the pivotal point which is the source of power for extension of the tenure of Respondent No.2. According to the Union of India, extension can be ordered by resorting to Section 21 of the General Clauses Act in the absence of specific provision in the CVC Act. On the other hand, the contention of the Petitioner is that Section 21 of the General Clauses Act has no application to Section 25 of the CVC Act. 17. Section 21 of the General Clauses Act reads as follows:- 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification dated 26.04.1950 extended the time for making the award till 30.04.1950. This Court in Strawboard Manufacturing Co. (supra) held that the State Government did not have authority to extend the time as the adjudicator became functus officio on the expiry of the time fixed in the original order of reference and, therefore, the award passed was without jurisdiction and a nullity. It was observed in the said judgement that Section 21 of the UP General Clauses Act cannot have retrospective operation. The learned Senior Counsel for the Petitioner relied upon the judgement in State of Madhya Pradesh v. Ajay Singh Ors. (supra). The question that arose for consideration in the said case is regarding replacement or substitution of the existing Member for the purpose of reconstitution of a Commission under the Commissions of Inquiry Act, 1952 by invoking power under Section 21 of the General Clauses Act. Section 3 of the Commissions of Inquiry Act gives power to fill a vacancy in the office of a Member of the Commission. As the manner of filling up the office of a Member of the Commission is expressly provided by Section 3, power under Section 21 of the General Clauses Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 6 of the Delhi Police Special Establishment Act. 20. We have already held that Section 25 (f) of the CVC Act has to be read as the tenure of office of the Director of Enforcement is for a minimum period of two years. There is no proscription on the Government to appoint a Director of Enforcement beyond a period of two years. The reasons for fixing the tenure for a minimum period of two years have been discussed in the earlier paragraphs. We are not in agreement with the submissions made by the learned Senior Counsel for the Petitioner that extension of tenure for officers above the rank of Deputy Director of Enforcement provided in sub-Section (f) of Section 25 has to be read as a bar on the power of the Government to extend tenure of the Director of Enforcement. As the tenure of appointment of Director of Enforcement is not a maximum period of two years, a person can be appointed as Director of Enforcement for a period of more than two years. If the Government has the power to appoint a person as Director of Enforcement for a period of more than two years, Section 25 of the CVC Act cannot be said to be inconsistent with Section 21 of the General Clauses Act. Follo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
